We granted a writ of certiorari in this case to determine if the lower courts erred in excluding evidence tending to show whether Jennifer Carbon, a 15-year-old girl severely injured in an automobile accident, was a "resident" entitled to coverage under the uninsured/underinsured motorist provisions of her father's automobile and umbrella policies with Allstate Insurance Company ("Allstate").
FACTS AND PROCEDURAL HISTORY
On May 20, 1992, Jennifer Carbon was injured in a one-car automobile accident just outside of New Braunfels, Texas. A guest passenger in the automobile, Jennifer was propelled through the front windshield during the accident, sustaining several injuries, including a closed head injury.
Jennifer's parents, Linda Franz and Dr. Robert Carbon, divorced in 1988. Her father remained in Thibodaux, Louisiana and Jennifer lived with her mother or other relatives from 1988 until the accident in May of 1992, first in Shreveport and then in New Braunfels. However, pursuant to a consent judgment rendered in the Seventeenth Judicial District Court in Lafourche Parish, the care, custody, and control of Jennifer was awarded jointly to both parents, with the judgment noting "[t]he principal residence of the minor child shall be with the mother." Although Dr. Carbon was entitled to regular visitation rights under the agreement
In July of 1992, Dr. Carbon made a claim for Jennifer's injuries on two insurance policies he had purchased from Allstate. Both policies limited coverage to "insured persons," who were defined as "[y]ou and any resident relative." The policies defined a "resident" as follows:
Allstate sent notice to Dr. Carbon rejecting his claim for Jennifer's injuries, contending that Jennifer was not an insured person under the policies because she was not a "resident" of Dr. Carbon's household, as defined by the policies, at the time of the accident.
Dr. Carbon subsequently filed this lawsuit on behalf of himself and his daughter seeking recovery under the uninsured/underinsured motorist provisions of his policies in addition to other damages and attorneys' fees.
Prior to trial, plaintiffs filed a motion in limine in which they sought to exclude evidence regarding the divorce proceedings of Linda Franz and Dr. Robert Carbon, as well as evidence showing both where Jennifer physically lived prior to the accident and where she intended to live. The trial court granted plaintiffs' motion in limine on April 4, 1996. In its written reasons for judgment the court concluded Allstate's use of the word "they" in its definition of resident was ambiguous, and any insurance policy provision which allowed a 15-year-old child to determine her own residence violated public policy. Therefore, the court looked to the intent of the parties who controlled where the child would reside. That intent, according to the trial court, was reflected in the court's ruling in the custody proceedings. Therein, the court had ruled Jennifer was to be subject to joint custody by Carbon and Franz. The trial court held a child subject to a joint custody decree which provides for cotutorship has two legal residences as a matter of law. Thus, according to the trial court, Jennifer's residence with her father was established as a matter of law, and evidence of the intent of the parties indicating otherwise was irrelevant. Under the court's ruling, Jennifer was a covered "resident" under her father's Allstate policies. The appellate court denied Allstate's writ application contesting the trial court's ruling, noting Allstate could proffer the excluded evidence and present its argument on appeal after the trial.
At trial, the jury made a substantial award to Dr. Carbon for Jennifer's medical expenses and personal injuries, which was subject to a reduction for Jennifer's contributory fault and the limits under the policies. The defendant proffered evidence, including Dr. Carbon's deposition and correspondence between Dr. Carbon and Jennifer, which Allstate claims indicates Jennifer's intent to live with her mother. (Allstate would have introduced this evidence had the trial court not granted the plaintiffs' motion in limine.)
On appeal, the First Circuit affirmed. Carbon v. Allstate Ins. Co., 96-2109 (La.App. 1st Cir. 9/23/97), 701 So.2d 462. Although the court did not agree with the trial court's finding that the word "they" in the second sentence of the policies' definition of "resident" was ambiguous, the court found the policies' definition of "resident" violated public policy because it predicated coverage on the intent of a minor as to her own residence. Absent a valid policy definition of "resident," the court concluded that as a matter of law, the custody judgment provided the legal residence of Jennifer was with both parents, and that the plan of visitation, even though never fully implemented, showed an intent of the court and the parents as to where Jennifer would reside. As such, the court held the trial court did not err in granting plaintiffs' motion in limine or in finding Jennifer was a resident of her father's household as a matter of law. We granted Allstate's writ of certiorari. Carbon v. Allstate Insurance Co., 97-3085 (La.3/27/98), 716 So.2d 365.
LAW AND DISCUSSION
An insurance policy is a contract between the parties. It should be construed by using the general rules for the interpretation of contracts as set out in the Civil Code. Louisiana Ins. Guar. Ass'n v. Interstate Fire & Cas. Co., 93-0911, p. 5 (La.1/14/94), 630 So.2d 759, 763; Smith v. Matthews, 611 So.2d 1377, 1379 (La.1993). The role of the judiciary in interpreting insurance contracts is to ascertain the common intent of the parties to the contract. Louisiana Ins., id.; La. C.C. art.2045. A court is to determine the intent of the parties to an insurance contract "in accordance with the general, ordinary, plain and popular meaning of the words used in the policy, unless the words
Both of the policies purchased by Dr. Carbon provide coverage to "insured persons," which include "any resident relative." As noted earlier, the policies define a "resident" as follows:
Under this definition there are two ways by which a person may be covered as a "resident" under the policy. The first sentence defines a resident as one who has a physical presence in the household of the insured plus the intention to
Because this provision is not ambiguous, Allstate is entitled to use its definition of "resident," agreed to by both parties, to limit its coverage as long as the definition does not conflict with either statutory law or public policy. Louisiana Ins., 93-0911 at p. 6, 630 So.2d at 763. The requirement of physical presence in the household clearly does not violate any statutory law or public policy. No Louisiana statute forbids insurers from limiting coverage to relatives of the insured who physically reside in or are only temporarily away from the insured's household. Additionally, in cases where the insurance policy itself had no definition of "resident," several courts have looked at a person's physical presence in the insured's household as a factor to be considered in determining whether that person was a covered "resident" under an insurance policy. See, e.g., Mobley v. State Farm Mut. Auto. Ins. Co., 28,357 (La.App. 2nd Cir. 5/8/96), 674 So.2d 1117 (13-year-old girl who had not spent the night in her father's house in nine years denied coverage under policy providing coverage to those "who live with you."); Chapman v. Allstate Ins. Co., 306 So.2d 414 (La. App. 3rd Cir.1975).
Thus, under the policy, in order for Jennifer Carbon to be a "resident," plaintiffs must first establish that Jennifer meets the "physical presence" requirement contained in the definition, i.e., that she was physically present in the Carbon home in Thibodaux to such a degree that she was considered to be "living there." (How else could one "continue living there" unless they were already living there?) Unless the jury was convinced that Jennifer met the "physical presence" requirement contained in the first sentence of the definition (or that she was physically present in the home to such a degree as to be able to "continue to live" there, but was temporarily away from home per the second sentence of the definition), there would be no need to address the second requirement, i.e., Jennifer's intent. Based on the proffered evidence by Allstate, there is clearly a contested issue as to whether Jennifer can meet the "physical
We turn now to whether the requirement that a relative have the intent to continue to live in the insured's household violates any statute or public policy. The lower courts found the intent requirement violated public policy in this case because they found the policy allowed the intent of a 15-year-old girl to determine her residency. Specifically, the trial court found that "to implement an insurance policy provision that lets a fifteen ... year old child decide where it wants to reside is against public policy." Similarly, the court of appeal found that it would violate public policy for coverage to be dependent on the intent of a minor as to whether he wanted to reside with his parents.
We disagree with the lower courts. Policies of insurance using almost the identical definition of "resident" have been in existence for many years and do not violate the public policy of this state. In fact, years ago this Court injected an "intent" requirement into insurance policy definitions of "resident" even in policies which did not specifically define "resident." Bearden v. Rucker, 437 So.2d 1116 (La.1983). Since then, courts of appeal have routinely used Bearden's intentbased definition of residency in cases where residency was undefined and in cases where the policy specifically used "intent" in the definition. See e.g., Prudhomme v. Imperial Fire & Cas. Ins., 95-1502 (La.App. 3rd Cir. 4/3/96), 671 So.2d 1116; Miley v. La. Farm Bureau Cas. Ins. Co., 599 So.2d 791 (La.App. 1 Cir.), writ denied, 604 So.2d 1313 (La.1992) (In case involving same policy definition of resident as case at bar, court held "[t]he real test is whether the absence of the party of interest from the household of the alleged insured is intended to be permanent or only temporary—i.e., whether there is physical absence coupled with the intent not to return." (citing Bearden)). Merely because in a few instances the intent of a child may not be easily proven or the child may be too young to legally form intent, does not make this standard definition of "resident," agreed to by Dr. Carbon and Allstate, against public policy.
By use of the word "intent," the definition of "resident" requires more than proof of a 15 year old's preference as to where he or she will reside. Black's Law Dictionary defines "intent" as "a state of mind in which a person seeks to accomplish a given result through a course of action." As a 15-year-old there is no doubt that Jennifer is old enough to form intent. In fact, in criminal cases, minors who are tried as adults can be
Requiring a finding of intent to remain in a certain household as a predicate to insurance coverage does not, as the trial court asserts, allow this teenager to determine where she will reside. Giving credence to the unmarried dependent child's intent, as we have defined it, merely determines insurance coverage. It does not violate public policy for an insurance company to hinge its coverage of relatives of the insured on the
Furthermore, we believe that the resolution of the physical presence requirement will frequently resolve the intent issue as well, for in many cases the minor will be too young to have formed any intent. Further, in this case where Allstate claims to have evidence by way of correspondence that Jennifer intended to stay with her mother, it might well be determined by the jury that her occasional visits with her father constitute sufficient physical presence in her father's house to cover her as a resident; she also must have intended to continue it, for we are aware of no evidence to suggest her intent to upset the status quo.
Since Allstate's definition of "resident" in the two insurance policies at issue in this case violates neither a statute nor the public policy of Louisiana, the trial court erred in refusing to apply this definition of "resident," and in granting plaintiffs' motion in limine. The policies' definition of "resident," rather than merely the terms of the custody judgment, must be used to determine whether Jennifer is a covered resident who is entitled to recovery under the two policies. Louisiana Ins., supra. Therefore, evidence proffered by Allstate which related to Jennifer's actual living arrangements and intent prior to the accident is relevant. La. C.E. art. 401.
Because of the pre-trial granting of plaintiffs' motion in limine, all evidence regarding Jennifer's living arrangements and intent prior to the accident was submitted by the defendant, Allstate, in the form of a post-trial proffer. Thus neither the plaintiffs nor the defendants have had a chance to present evidence of these issues to the fact finder, which is the jury in this case.
The judgment of the court of appeal is reversed and the case is remanded to the trial court for a new trial.
CALOGERO, C.J., and JOHNSON and KNOLL, JJ., dissent and assign reasons.
CALOGERO, Chief Justice, dissenting.
I disagree with the majority's conclusion that Allstate's definition of resident does not violate public policy under these circumstances. According to Allstate's definition, residency hinges upon an unemancipated minor's intent to continue living in her father's household. This conflicts with the Civil Codes's emphasis on awarding joint custody when it is in the best interest of the child. See La. Civ.Code arts. 131 & 132. It further
JOHNSON, Justice, dissenting.
Robert Carbon and Linda Franz were divorced in 1988. The Seventeenth Judicial District Court (Parish of Lafourche) awarded joint custody of the minor, Jennifer. In my view, Louisiana has recognized that the child of divorced parents is entitled during her minority to "residence" with both parents. See Mobley v. State Farm Mut. Auto. Ins. Co., 28,357 (La.App. 2 Cir. 5/8/96); 674 So.2d 1117. Routinely, district judges order one or the other parent to maintain policies of insurance which cover these minor children, without concern as to which parent's residence is the "primary" residence. Since the legislature has expressed a clear intent with regard to joint custody and dual residency, it would be contrary to that public policy to allow insurers to inquire as to an unemancipated minor's intent with regard to her residence.
For the foregoing reasons, I would affirm the judgments of the trial court and the court of appeal.
KNOLL, Justice, dissenting.
The majority characterizes the policies' definition of "resident" as requiring physical presence. I disagree. The first sentence requiring "physical presence ... with the intention to continue living there" means that physical presence alone is insufficient to establish coverage as a resident relative. A second condition of intent to continue to live there must also be satisfied. See, e.g., Prudhomme v. Imperial Fire & Cas. Ins. Co., 95-1502 (La.App. 3 Cir. 4/3/96), 671 So.2d 1116, writ granted in part (to reorganize the limitations of the insurer's liability), 96-1030 (La.6/7/96), 674 So.2d 987, cited by the majority. Although a half brother had no other home and had lived with his sister for three months before the accident and about a year after, he had articulated an intent that living with his sister was only temporary. Therefore the trial court did not manifestly err in finding him not to be covered under the resident relative expansion clause of the policy.
The second sentence of Allstate's definition: "Unmarried dependent children, while temporarily away from home will be considered residents if they intend to continue to live in
In the instant matter, there was never any doubt that at one time, Jennifer maintained a physical presence in the named insured's household. Thus, at issue here is whether, under the second sentence, or expansion clause of the policy, an insurer can give effect to an unemancipated minor child's intent with respect to residency and thereby preclude coverage under her parent's policy.
The majority points out that in defining "resident," intent has been an important consideration. However, in cases cited by the majority, only an adult's intent was at issue.
In this case, Jennifer was a legal resident of her father's household by virtue of the joint custody decree.
The general policy behind UM coverage is to fill the void created when an injury is inflicted by a motorist who is uninsured, underinsured, or unknown. 12A RONALD A. ANDERSON & MARK RHODES, COUCH CYCLOPEDIA OF INSURANCE LAW § 45:620 (2d ed.1981). Accordingly, Allstate set its premiums, which did not decrease because Jennifer began living with her mother. Obviously, Allstate had already made a business decision that Jennifer's presence or absence would have no effect on its risk beyond what it had anticipated at the time it set the cost of providing insurance for the named insured's family. Allstate, therefore, would not be prejudiced by a determination that Jennifer was covered under her father's policy, and Jennifer's father should be permitted to benefit from the insurance protection.
Perhaps because of the broad protective purposes behind insurance, Louisiana has taken a broad view of who is a covered resident under a policy's expansion clause, such as the one at issue in this case,
The majority is concerned that finding Jennifer covered under her father's policy
97-3085, at p. 443. (Emphasis added.) However, Louisiana jurisprudence has recognized that coverage may be precluded when a minor child has never stayed at the insured parent's home. See, e.g., Chapman v. Allstate Insurance Company, 306 So.2d 414 (La.App. 3 Cir.1975); Mobley v. State Farm Mutual Automobile Insurance Company, 28,357 (La.App. 2 Cir. 5/8/96), 674 So.2d 1117, writ denied 96-1402 (La.9/20/96), 679 So.2d 433.
In this case, there has been no suggestion that Jennifer never spent time at her father's house following the divorce. Therefore, I would find that the trial judge did not abuse his discretion in granting the motion in limine excluding non-essential evidence. I would also conclude that the policies' definition of resident is against public policy as applied to minors, given the strong connection between parental authority, alimentary obligations and La.Civ.Code art. 218.
For these reasons, I respectfully dissent.
The appellate court also relied upon Toca v. Rojas, 152 La. 317, 93 So. 108 (1921), in reaching its conclusion. Toca, quoting Prieto v. St. Alphonsus Convent of Mercy, 52 La.Ann. 631, 27 So. 153 (1900), merely holds that a minor cannot "leave the paternal domicile permanently and select for himself another domicile or residence." Toca, 152 La. at 325, 93 So. at 110. The facts of this case, though, do not involve a minor who tried to establish a residence separate from her parents. Instead, it deals with a minor who merely chose, with the permission of both of her parents, to spend a great majority of her time with one parent despite the terms of a custody judgment. Additionally, Toca dealt with parental responsibility for the acts of a minor child under Articles 237, 2317 and 2318 of the Civil Code. This case merely deals with a definition in an insurance policy which sets out those who are entitled to coverage. Thus, Toca is not authority for finding that Allstate's definition violates the public policy of this state.
When parents divorce, the obligation to provide support continues subject to a court's delegation of proportionate amounts pursuant to La. Civ.Code art. 141, which provides in pertinent part: "In a proceeding for divorce or thereafter, the court may order either or both of the parents to provide an interim allowance or final support for a child based on the needs of the child and the ability of the parents to provide support."